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                                   Before the

   Federal Communications Commission

   Washington, D.C. 20554

     In the Matter of   )   File No.: EB-10-MA-0198      
     Durrant Clarke     )   NAL/Acct. No.: 201132600007  
     Miami, Florida     )   FRN: 0020872792              

                                FORFEITURE ORDER

   Adopted: January 31, 2012 Released: January 31, 2012

   By the Regional Director, South Central Region, Enforcement Bureau:


    1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
       the amount of one thousand dollars ($1,000) to Durrant Clarke (Mr.
       Clarke) for willful and repeated violation of Section 301 of the
       Commission's Act of 1934, as amended (Act). The noted violations
       involved Mr. Clarke's operation of an unlicensed radio transmitter on
       the frequency 95.9 MHz from his business in Miami, Florida.


    2. On May 19, 2011, the Enforcement Bureau's Miami Office (Miami Office)
       issued a Notice of Apparent Liability for Forfeiture (NAL)  to Mr.
       Clarke for operating an unlicensed radio transmitter on November 6 and
       20, 2010. In view of the record evidence, the NAL proposed a
       forfeiture of $10,000 against Mr. Clarke for violation of Section 301
       of the Act. Mr. Clarke submitted a response to the NAL admitting that
       he allowed someone to place radio equipment in his space but denying
       participation in the "breaking of any law." Mr. Clarke also requested
       a reduction of the proposed forfeiture based on his inability to pay
       the forfeiture.


    3. The proposed forfeiture amount in this case was assessed in accordance
       with Section 503(b) of the Act, Section 1.80 of the Commission's rules
       (Rules), and the Forfeiture Policy Statement. In examining Mr.
       Clarke's response, Section 503(b)(2)(E) of the Act requires that the
       Commission take into account the nature, circumstances, extent, and
       gravity of the violation and, with respect to the violator, the degree
       of culpability, any history of prior offenses, ability to pay, and
       other such matters as justice may require. As discussed below, we have
       considered Mr. Clarke's response in light of these statutory factors
       and we reduce the forfeiture to $1,000 based solely on his inability
       to pay.

    4. As set forth in the NAL, agents from the Miami Office determined that
       an unlicensed radio station on the frequency 95.9 MHz operated from
       Mr. Clarke's business address in Miami, Florida on November 6 and 20,
       2010. In his response to the NAL, Mr. Clarke states that he allowed
       "Brother Gary" to place "some sort of portable `radio' system" in his
       business space in order "to spread the word of God" without any
       monetary compensation. Mr. Clarke, however, admits that he: (1) knew
       the equipment was "radio" equipment; (2) allowed the equipment to be
       placed in his business space; and (3) turned the equipment on and off
       as directed by "Brother Gary." Mr. Clarke also does not deny that he
       had control over the physical space in which the transmitter was
       located and acknowledged that he provided the electricity and internet
       access to the station.

    5. Section 301 of the Act states that no person shall use or operate any
       apparatus for the transmission of energy or communications or signals
       by radio within the United States, except under and in accordance with
       the Act and with a license granted under the provisions of the Act.
       For the purposes of Section 301 of the Act, the word "operate" has
       been interpreted to mean both the technical operation of the station,
       as well as "the general conduct or management of a station as a whole,
       as distinct from the specific technical work involved in the actual
       transmission of signals." In other words, the use of the word
       "operate" in Section 301 of the Act captures not just the "actual,
       mechanical manipulation of radio apparatus" but also operation of a
       radio station generally. To determine whether an individual is
       involved in the general conduct or management of the station, we can
       consider whether such individual exercises control over the station,
       which the Commission has defined to include ". . . any means of actual
       working control over the operation of the [station] in whatever manner

    6. As stated in the NAL, the fact that someone else also may have been
       involved in the station's operation does not make Mr. Clarke any less
       of a participant in the station's operation. We have previously held
       that, because Section 301 of the Act provides that "no person shall
       use or operate" radio transmission equipment, liability for unlicensed
       operation may be assigned to any individual taking part in the
       operation of the unlicensed station, regardless of who else may be
       responsible for the operation. Moreover, the fact that he provided his
       services to "Brother Gary" for free has no bearing on whether Mr.
       Clarke had control over the station. Together, the undisputed
       facts-that Mr. Clarke knowingly allowed someone to place radio
       equipment in his business space, paid for the electricity for the
       radio station, and turned the radio station on and off-show Mr. Clarke
       had control of the station, and thus was an operator of the station.
       The fact that Mr. Clarke did not intend to violate the law has no
       impact on whether his violations were willful, as he consciously
       committed the illegal acts. Therefore, we find that Mr. Clarke
       willfully and repeatedly violated Section 301 of the Act by operating
       an unlicensed radio station.

    7. With regard to an individual's or entity's inability to pay claim, the
       Commission has determined that, in general, gross revenues are the
       best indicator of an ability to pay a forfeiture. Based on our review
       of the financial documents provided by Mr. Clarke, we find that a
       reduction from $10,000 to $1,000 is warranted.


    8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.204,
       0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Durrant Clarke
       IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand
       dollars ($1,000) for violations of Section 301 of the Act.

    9. Payment of the forfeiture shall be made in the manner provided for in
       Section 1.80 of the Rules within thirty (30) calendar days of the
       release of this Order. If the forfeiture is not paid within the period
       specified, the case may be referred to the Department of Justice for
       enforcement pursuant to Section 504(a) of the Act. Payment of the
       forfeiture must be made by check or similar instrument, payable to the
       order of the Federal Communications Commission. The payment must
       include the NAL/Account Number and FRN referenced above. Payment by
       check or money order may be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
       overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
       wire transfer may be made to ABA Number 021030004, receiving bank
       TREAS/NYC, and account number 27000001. For payment by credit card, an
       FCC Form 159 (Remittance Advice) must be submitted.  When completing
       the FCC Form 159, enter the NAL/Account number in block number 23A
       (call sign/other ID), and enter the letters "FORF" in block number 24A
       (payment type code). Requests for full payment under an installment
       plan should be sent to:  Chief Financial Officer - Financial
       Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
       20554.   Please contact the Financial Operations Group Help Desk with
       any questions regarding payment procedures at 1-877-480-3201 or Email: Mr. Clarke shall also send electronic
       notification to  on the date said payment is

   10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
       First Class and Certified Mail, Return Receipt Requested, to Durrant
       Clarke at his address of record.


   Dennis P. Carlton

   Regional Director, South Central Region

   Enforcement Bureau

   47 U.S.C. S: 301.

   Durrant Clarke, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
   6982 (Enf. Bur. 2011). A comprehensive recitation of the facts and history
   of this case can be found in the NAL and is incorporated herein by

   47 U.S.C. S: 301.

   See Letter from Durrant Clarke to Steven DeSena, Resident Agent, Miami
   Office, Enforcement Bureau, dated May 28, 2011 (NAL Response).

   47 U.S.C. S: 503(b).

   47 C.F.R. S: 1.80.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture
   Policy Statement).

   47 U.S.C. S: 503(b)(2)(E).

   NAL Response at 1.


   47 U.S.C. S: 301.

   See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
   (comparing the use of the words "operate" and "operation" in Sections 301,
   307, and 318 of the Act and concluding that the word "operate" as used in
   Section 301 of the Act means both the technical operation of the station
   as well as the general conduct or management of the station).



   See Revision of Rules and Policies for the Direct Broadcast Satellite
   Service, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV, Inc. v.
   FCC, 110 F.3d 816 (D.C. Cir. 1997).

   NAL at 6984.

   47 U.S.C. S: 301.

   See, e.g., Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11
   (Enf. Bur. 2005); Robert Brown, Notice of Apparent Liability for
   Forfeiture, 25 FCC Rcd 13740 (Enf. Bur. 2010); Loyd Morris, Notice of
   Apparent Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).

   See Jhony Desinor, Forfeiture Order, 19 FCC Rcd 14137 (Enf. Bur. 2004),
   recon. dismissed 21 FCC Rcd 7858 (Enf. Bu. 2006) (operator who did not
   receive any revenues from the station can still be held liable for station

   See 47 U.S.C. S: 312(f)(1). Section 312(f)(1) of the Act, which also
   applies to violations for which forfeitures are assessed under Section
   503(b) of the Act, defines willful as the "conscious and deliberate
   commission or omission of [any] act, irrespective of any intent to
   violate" the law.


   Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), provides that "[t]he
   term `repeated', when used with reference to the commission or omission of
   any act, means the commission or omission of such act more than once or,
   if such commission or omission is continuous, for more than one day."

   See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
   2088, 2089 (1992) (forfeiture not deemed excessive where it represented
   approximately 2.02 percent of the violator's gross revenues); Local Long
   Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
   deemed excessive where it represented approximately 7.9 percent of the
   violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
   Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
   represented approximately 7.6 percent of the violator's gross revenues).

   This forfeiture amount falls within the percentage range that our
   precedents have found acceptable. See supra note 23. If Mr. Clarke
   believes that paying this amount still presents financial difficulties, we
   note that he could always pursue an installment payment plan to lessen the
   immediate impact of the forfeiture.

   47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,

   47 U.S.C. S: 504(a).

   Federal Communications Commission DA 12-108


   Federal Communications Commission DA 12-108